Global Legal Monitor

(Jan. 10, 2011) The Constitutional Court decided on December 28, 2010, that Korea's law that punishes the act of spreading false information via the Internet for the purpose of harming the public good is unconstitutional. In the case reviewed by the Court, the defendant, who posted economic predictions using his Internet username and who had gained a good reputation in the Korean Internet world, posted false information on a popular online debate site; namely that the government was asking banks not to buy dollars. As a consequence, unrest was created in the country's foreign exchange market and the government had to spend about US$2 billion to stabilize it. ('Minerva' Allegedly Cost South Korea $2B, UPI(Jan. 12, 2009), http://www.upi.com/Top_News/2009/01/12/Minerva-allegedly-cost-South-Korea-2B/UPI-41081231782569/; Jeon Hae-sun, Appropriate Response to Minerva?, KOREA TIMES (Jan. 29, 2009), http://www.koreaittimes.com/story/appropriate-reponse-minerva.)

The Court stated that the concept of “harming public good” in article 47, paragraph 1, of the Framework Act on Telecommunications (Act No. 4393 (Aug. 10, 1991), last amended by Act No. 10393 (July 23, 2010)) is vague, so that the provision is not clear enough to permit restriction of the freedom of expression based on that concept. (Song Jung-a, S Korean Court Rules on Internet Law, FINANCIAL TIMES (Dec. 28, 2010), http://www.ft.com/cms/s/0/38b354a4-126d-11e0-b4c8-00144feabdc0.html [free registration required].)

In the past, according to press reports, false information that was spread through the Internet caused significant confusion among people in Korea. There are other famous cases in which the defendants were indicted based on the same unclear provision of law, for example, the netizens who spread the information that the South Korean Navy ship, Cheonan, was sunk by the United States rather than by North Korea. (Id.) Those defendants would not be found guilty in the aftermath of this new Constitutional Court decision.

The judgment did not state that freedom of expression on the Internet is limitless. It admitted the possibility of restricting expression based on the national security risk posed and in order to protect public welfare. One of the major newspapers in Korea wrote in an editorial that Korea needs a law to prohibit acts of spreading false information with the purpose of putting national security or public welfare at risk, a law that will not violate the Constitution. (Editorial: Netto jo no dema o fusegu ho teki seibi ga kyumu (Legal System to Restrict False Information on the Internet is Urgently Needed) [in Japanese], CHOSUN NEWSPAPER (Dec. 29, 2010), http://www.chosunonline.com/news/20101229000035.)